UNITED STATES of America, Plaintiff-Appellee, v. Isaac SEABROOKS, Defendant-Appellant.
No. 15-10380
United States Court of Appeals, Eleventh Circuit.
October 19, 2016
1326, 1327, 1328, 1329, 1330, 1331, 1332, 1333, 1334, 1335, 1336, 1337, 1338, 1339, 1340, 1341, 1342, 1343, 1344, 1345, 1346, 1347, 1348, 1349, 1350, 1351, 1352
Before HULL, MARTIN, and BALDOCK,* Circuit Judges.
HULL, Circuit Judge:
Defendant Isaac Seabrooks appeals his convictions and 188-month total sentence. A jury found him guilty on one count of being a convicted felon in possession of firearms and ammunition, in violation of
After review of the record and with the benefit of oral argument, we affirm Seabrooks‘s convictions and sentence.
I. BACKGROUND
A. Offense Conduct
On July 23, 2014, Qonsheka Smith, a park ranger, observed a Cadillac with two occupants, later identified as Nigel Butler and Isaac Seabrooks, pull into a parking lot in Grapeland Park. Butler was driving the Cadillac, which was stolen, and Seabrooks was sitting in the front passenger‘s seat. Butler and Seabrooks were both convicted felons.
Ranger Smith saw Butler roll down his window as he pulled into the parking lot. Smith observed the Cadillac park next to a vacant green truck owned by Jose Cruz Smith, an individual who was at Grapeland Park to watch his nephew‘s baseball game. Shortly after the Cadillac parked next to Cruz‘s truck, the occupant of a red car pulled into the parking lot, changed the diaper of a child in the car, and drove away. After the red car left the parking lot, Ranger Smith saw Butler exit the Cadillac, break into the passenger-side door of Cruz‘s truck, and remove several items from Cruz‘s truck.
Ranger Smith immediately radioed the police dispatcher to inform the police of a theft in progress. Ranger Smith described Butler‘s clothing and the Cadillac to the dispatcher. Though she mostly tried to remain hidden, Ranger Smith saw Butler remove items from the green truck, place them inside the Cadillac, return to the driver‘s seat of the Cadillac, and drive away. Ranger Smith never saw Seabrooks exit the Cadillac.
Soon after the Cadillac drove away, the police arrived in the parking lot, interviewed Ranger Smith for about five minutes, and left. A short time after the police left, Ranger Smith observed the same Cadillac return to the parking lot. Ranger Smith radioed the police dispatcher again to inform the police that the Cadillac had returned. After remaining in the parking lot for some time, the Cadillac attempted to leave the parking lot, but the police arrived and blocked the parking lot exit.
Lieutenant Ariel Rojas, a Miami police officer, pointed his firearm at the driver of the Cadillac and ordered him to exit the vehicle. In response, Butler, who was still driving, and Seabrooks, who was still in
After Butler and Seabrooks exited the Cadillac, Rojas looked inside and saw three firearms—(1) a holstered revolver laying on the driver‘s side floorboard, (2) a semi-automatic pistol, housed in a black gun pouch, laying on top of a cushioned backrest on the passenger‘s side seat, and (3) a revolver, with no case or holster, wedged between the driver‘s seat and front passenger‘s seat. Police officers recovered the firearms from the Cadillac and discovered that they were all loaded.1
Police officers contacted Cruz shortly after the theft. Cruz confirmed that his truck was parked at the Grapeland Park parking lot at the time of the theft. Cruz further confirmed that the handle of the passenger-side door of his truck was damaged, as he observed a hole in the handle that was used to gain access to his truck.
Police officers showed the firearms recovered from the Cadillac to Cruz, and Cruz confirmed the firearms were his. Cruz typically stored those firearms inside his truck. Cruz kept the firearms in pouches or holsters to protect the surfaces of the firearms.
B. Seabrooks‘s Post-Arrest Statements
Orlando Merced was one of the police officers who responded to the dispatch call to Grapeland Park. Officer Merced approached a handcuffed Seabrooks to conduct a fingerprint identification with a portable device. Seabrooks asked what the device was for and Officer Merced responded that it was for identification and to see if Seabrooks touched the gun. Seabrooks stated, “Oh, well, I touched the little gun, Officer . . . . You‘ll find my fingerprints on the small gun.”
In a post-Miranda police interview, Seabrooks admitted that he took all three firearms from Butler and placed them in the console of the Cadillac. According to Seabrooks, one of the items that Butler handed to him was a black pouch obtained from Cruz‘s truck. Seabrooks opened the pouch and saw that it contained a semi-automatic pistol. Seabrooks stated that he “[didn‘t] want no guns around [him], period,” so he put the gun and pouch in the center armrest.
Seabrooks stated that he did not know Butler intended to steal firearms from Cruz‘s truck and repeatedly contended that he never got out of the car and, therefore, did not participate in the theft. Seabrooks explained that the intent was “not to go get no guns,” but “[t]he intent was just try to get some money.” Seabrooks acknowledged, however, that he remained in the Cadillac while Butler broke into Cruz‘s truck and handed over the stolen firearms.
When told he was being charged with being a felon in possession of a firearm, Seabrooks was adamant that he did not “possess” any of the firearms, as he only incidentally handled a single firearm that he quickly stored away from his person. In fact, Seabrooks claimed that he and Butler returned to the parking lot so that they could return the guns to Cruz‘s truck.
C. Indictment, Trial, Jury Instructions, and Guilty Verdict
A federal grand jury returned a two-count indictment against Butler and Sea-
At trial, the government presented several witnesses. In relevant part, Ranger Smith testified about how she witnessed the theft of items from Cruz‘s truck; Lieutenant Rojas testified about the apprehension of the defendants and the firearms recovered from the Cadillac; and Cruz testified that those firearms were stolen from his truck. While Seabrooks did not testify, the government introduced to the jury Seabrooks‘s post-arrest statement to Officer Merced, as well as the admissions he made to police in his post-Miranda interview.
Before resting, the government read the jury a stipulation signed by counsel for both parties stating that: (1) Seabrooks previously was convicted of a felony involving theft and the possession of a firearm; (2) Butler previously was convicted of the felony offense of burglary of an unoccupied conveyance; and (3) neither Seabrooks nor Butler had had their rights restored and, therefore, neither was legally allowed to possess a firearm or ammunition.
Prior to closing arguments, Seabrooks objected to the inclusion of an aiding and abetting jury instruction on the grounds that the evidence did not warrant that instruction. The government responded that the instruction was proper, recounting the evidence presented. The district court overruled the objection, concluding that “the aiding and abetting instruction is proper with regard to Mr. Seabrooks’ [s] participation.”
The district court‘s jury instruction on aiding and abetting stated:
It is possible to prove the Defendant guilty of a crime even without evidence that the Defendant personally performed every act charged. Ordinarily, any act a person can do may be done by directing another person or agent or it may be done by acting with or under the direction of others.
A defendant aids and abets another person if the defendant intentionally joins with a person to commit a crime.
A defendant is criminally responsible for the acts of another person if the defendant aids and abets the other person.
A defendant is also responsible if the defendant willfully directs or authorizes the acts of an agent, employee or other associate. But finding that a defendant is criminally responsible for the acts of another person requires proof that the defendant intentionally associated with or participated with the crime, not just proof that the defendant was simply present at the scene of a crime or knew about it. In other words, you must find beyond a reasonable doubt that the defendant was a willful participant and not merely a knowing spectator.
The jury found Seabrooks guilty on both counts.
D. Sentencing
The Presentence Investigation Report (“PSI“) recommended a base offense level of 20, pursuant to
The PSI noted that Seabrooks was an armed career criminal because on August 13, 1997, he was convicted in Florida state court of armed robbery with a firearm in six separate cases. Each of those six cases involved armed robberies committed in 1995, on occasions different from one another.2
Due to his status as an armed career criminal under
As to Count 1, Seabrooks‘s status as an armed career criminal under
Seabrooks objected to the PSI, contending: (1) he was entitled to a 2-level decrease under
At Seabrooks‘s January 23, 2015 sentencing hearing, the district court granted Seabrooks‘s request for a 2-level decrease due to his minor role and sustained his objection to the 2-level increase for obstruction of justice. The district court overruled Seabrooks‘s armed-career-criminal objection, finding Seabrooks had the requisite predicate convictions under the ACCA.
Because of his armed-career-criminal status, Seabrooks‘s offense level and criminal history category remained at 33 and IV, respectively, and yielded an advisory guidelines range of 188 to 235 months’ imprisonment.
After considering that advisory range and the factors set forth in
II. CONVICTIONS
On appeal, Seabrooks argues that the district court erred by giving the aiding and abetting instruction.
A. Standard of Review
We review de novo the legal correctness of jury instructions, but we review the district court‘s phrasing for abuse of discretion. United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). Jury instructions are also subject to harmless error review. United States v. House, 684 F.3d 1173, 1196 (11th Cir. 2012). “An error is harmless if the reviewing court is satisfied ‘beyond a reasonable doubt that the
We review jury instructions “to determine whether the instructions misstated the law or misled the jury to the prejudice of the objecting party.” United States v. Gibson, 708 F.3d 1256, 1275 (11th Cir. 2013) (quotation marks omitted). We will not reverse a conviction based on a jury instructions challenge “unless we are ‘left with a substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations.‘” Id. But “[w]hen the jury instructions, taken together, accurately express the law applicable to the case without confusing or prejudicing the jury, there is no reason for reversal even though the isolated clauses may, in fact, be confusing, technically imperfect, or otherwise subject to criticism.” Id. (quotation marks omitted). Moreover, the Supreme Court has admonished that “in reviewing jury instructions, our task is also to view the charge itself as a part of the whole trial,” noting that “[o]ften isolated statements taken from the charge, seemingly prejudicial on their face, are not so when considered in the context of the entire record of the trial.” United States v. Park, 421 U.S. 658, 675-76 (1975) (quotation marks omitted).
B. Aiding and Abetting Instruction
“Aiding and abetting need not be specifically alleged in the indictment; assuming the evidence supports it, the accused can be convicted of aiding and abetting so long as the jury is instructed on it.” United States v. Martin, 747 F.2d 1404, 1407 (11th Cir. 1984). Thus, an aiding and abetting instruction is permissible where the evidence presented would support a conviction for that aiding and abetting offense. See id.
To prevail under a theory of aiding and abetting, “the [g]overnment must prove: (1) the substantive offense was committed by someone; (2) the defendant committed an act which contributed to and furthered the offense; and (3) the defendant intended to aid in its commission.” United States v. Camacho, 233 F.3d 1308, 1317 (11th Cir. 2000). While mere presence is not sufficient to uphold a conviction for aiding and abetting, “presence . . . coupled with other evidence of guilt can be adequate to sustain the conviction.” United States v. Bryant, 671 F.2d 450, 454 (11th Cir. 1982). We address the
C. 18 U.S.C. § 922(j)
To support a
Here, the trial evidence showed that Seabrooks aided Butler in committing a
A jury could reasonably find that this evidence shows that Seabrooks was a willful participant and assisted Butler in stealing and possessing three firearms. The district court did not err in giving the aiding and abetting instruction.
D. New Rosemond Claim as to § 922(j)
For the first time on appeal, Seabrooks argues, relying on Rosemond v. United States, 572 U.S. 65, 134 S. Ct. 1240, 188 L. Ed. 2d 248 (2014), that to obtain an aiding and abetting instruction on the
Although Seabrooks objected generally to the aiding and abetting instruction at trial, that general objection to the sufficiency of the evidence did not preserve the more specific Rosemond claim he now raises. Cf. United States v. Dennis, 786 F.2d 1029, 1042 (11th Cir. 1986) (“To preserve an issue at trial for later consideration by an appellate court, one must raise an objection that is sufficient to apprise the trial court and the opposing party of the particular grounds upon which appellate relief will later be sought. A general objection or an objection on other grounds will not suffice.“). Our review of this Rosemond issue is thus for plain error only. See United States v. Hasson, 333 F.3d 1264, 1277 (11th Cir. 2003).
The government argues that Rosemond does not apply to a
The Supreme Court explained in Rosemond that “[w]hen an accomplice knows beforehand of a confederate‘s design to carry a gun, he can attempt to alter that plan or, if unsuccessful, withdraw from the enterprise . . . .” Id. at 1249. By enacting
In contrast to a
At bottom, we need not decide the Rosemond-
Here, assuming arguendo that advance knowledge is required for aiding and abetting a
This evidence was more than sufficient to allow the jury to draw the reasonable inference that Seabrooks intended to aid Butler in possessing stolen firearms. Even assuming arguendo that Rosemond somehow applies to aiding and abetting a
E. 18 U.S.C. § 922(g)
We turn to the evidence supporting the
Again, the jury could reasonably find, based on the trial evidence, that Seabrooks aided Butler in committing a
F. New Rosemond Claim as to § 922(g)‘s Possession Element
Seabrooks contends that Rosemond requires that he have advance knowledge that Butler was going to possess a firearm and was a convicted felon. The government disagrees and argues that the act of possessing a firearm is a single act, not compound, and Rosemond does not apply to possession for the reasons outlined above.
Again we need not decide that threshold issue. This is because, even if Rosemond were to apply to the possession element of a
G. New Rosemond Claim as to § 922(g)‘s Convicted Felon Status Element
Again relying on Rosemond, Seabrooks separately contends that the aiding and abetting instruction was warranted only if he had advance knowledge that Butler was a convicted felon.
Neither this Court nor the Supreme Court has addressed the question of whether a defendant‘s knowledge that the principal was a convicted felon is an essential element of the offense of aiding and abetting a
We need not decide this question because there can be no plain error when neither the Supreme Court nor this Court has resolved the issue and other circuits are split. United States v. Evans, 478 F.3d 1332, 1338 (11th Cir.), cert. denied, 552 U.S. 910, 128 S. Ct. 257, 169 L. Ed. 2d 188 (2007). Thus, Seabrooks has not satisfied his burden of demonstrating plain error.
H. Jury Confusion
We also reject Seabrooks‘s claim that the aiding and abetting instruction, along with the government‘s closing argument, were confusing or misleading. Seabrooks argues, inter alia, that the instruction was misleading by virtue of the fact that the court redacted Butler‘s name when it read the indictment during voir dire. According to Seabrooks, this fact confused the jury by suggesting that it could find him guilty of aiding and abetting himself. Trial witnesses made repeated reference to Butler and discussed his role in the offense. And both Seabrooks and the government made reference to Butler in their closing arguments. In fact, Seabrooks stipulated that Butler was a convicted felon who legally was not allowed to possess a firearm. The aiding and abetting instruction itself made it clear that a defendant can incur liability under an aiding and abetting theory only where he joins with another person in the commission of the crime.
Under the factual circumstances and evidence in this case, Seabrooks has shown no reversible error as to the aiding and abetting instruction.
Seabrooks argues that the district court erred by overruling his objection to his armed-career-criminal designation under
Thus, the ACCA, the Florida robbery statute, and the relevant case law are reviewed below.
A. The ACCA
A felon in possession of a firearm who has at least three prior convictions “for a violent felony or a serious drug offense, or both, committed on occasions different from one another,” is subject to an enhanced statutory penalty under the ACCA.
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Armed robbery is not an enumerated crime, and the Supreme Court has held that the residual clause is unconstitutionally vague. Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551, 2557-58, 2563, 192 L. Ed. 2d 569 (2015). This case involves only the elements clause. Thus, the salient question is whether a conviction for armed robbery with a firearm under Florida law “has as an element the use, attempted use, or threatened use of physical force against the person of another.”
B. Florida Robbery Statute
Seabrooks committed his armed robbery offenses in 1995. Florida‘s robbery statute in
(1) “Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.
(2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable . . . as provided in s. 775.082, s. 775.083, or s. 775.084.
Because the robbery statute has included the requirement of “force, violence, assault, or putting in fear” from the 1970‘s to the present, it is helpful to review our decisions about
C. Eleventh Circuit Decisions in Dowd and its Progeny
In 2006, this Court held that a 1974 Florida conviction for armed robbery “is undeniably a conviction for a violent felony” under the ACCA‘s elements clause. United States v. Dowd, 451 F.3d 1244, 1255 (11th Cir. 2006). This Court, citing only the elements clause, “conclude[d] without difficulty” that the defendant‘s Florida armed robbery conviction qualified as a violent felony. Id.
This Court has followed Dowd in several recent cases. In In re Hires, 825 F.3d 1297 (11th Cir. 2016) (rejecting the claim that Descamps v. United States, 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), undermined our precedent in Dowd and holding that the defendant‘s 1995 Florida robbery conviction qualified as a violent felony under the ACCA‘s elements clause, which includes “any felony that ‘has as an element the use, attempted use, or threatened use of physical force‘“); In re Thomas, 823 F.3d 1345, 1349 (11th Cir. 2016) (citing Dowd and holding that the defendant‘s 1980 and 1986 Florida “convictions for armed robbery qualify as ACCA predicates under the elements clause“); In re Moore, 830 F.3d 1268, 1271 (11th Cir. 2016) (concluding that the defendant‘s two Florida robbery-with-a-firearm convictions and his armed robbery conviction “qualify as violent felonies under our binding precedent” in Dowd and Thomas).7 Accordingly, under Dowd and its progeny, a Florida armed robbery conviction, such as Seabrooks‘s, categorically qualifies as a violent felony under the ACCA‘s elements clause.
I am mindful that Judge Martin and I view Dowd differently. My view is that Dowd and its progeny control under our prior panel precedent rule discussed below. Judge Martin‘s view is that Dowd “is no longer good law.”
Judge Baldock‘s concurrence declines to reach any issue about Dowd because (1) ”United States v. Lockley, 632 F.3d 1238 (11th Cir. 2011) answers in the affirmative the question of whether [Seabrooks] qualifies as an armed career criminal for federal sentencing purposes,” and (2) “[t]hat prior precedent is controlling on this panel with or without United States v. Dowd.” Judge Baldock “would resolve the sentencing issue in this case on the basis of Lockley alone.”
D. Eleventh Circuit Decision in Lockley
In Lockley, this Court held that a Florida robbery conviction under
Applying the pure categorical approach in Lockley, this Court examined the elements of a robbery offense under Florida law, starting with “the taking of money or other property.” See
The taking referred to ‘must be by the use of force or violence or by assault so as to overcome the resistance of the victim, or by putting him in fear so that the victim does not resist.” Fla. Std. Jury Instr. (Crim.) 15.1. The property taken need not be taken from the actual person of the victim, but must be sufficiently under his control “so that it cannot be taken without the use of force, violence, or intimidation directed against the victim.” Id. Assault, in turn, is defined as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that violence is imminent.”
Fla. Stat. § 784.011(1) . And, “[t]he fear contemplated by the statute is the fear of death or great bodily harm.” Magnotti v. State, 842 So. 2d 963, 965 (Fla. 4th Dist. Ct. App. 2003) (internal quotation marks omitted).
632 F.3d at 1242 (footnote omitted).
The Lockley Court then concluded that the “commission of robbery in violation of
(1) commit a taking of money or other property from another person or in the custody of another person (2) with the intent to permanently or temporarily deprive the person of the money or property or any benefit thereof (3) using force, violence, or an intentional threat of imminent force or violence against another coupled with an apparent ability to use that force or violence, or by causing the person to fear death or great bodily harm (4) where the money or property has value.
Id. at 1242-43 (emphasis added). Applying the categorical approach, the Lockley Court analyzed the least culpable of the acts in
Later on, the Lockley Court repeated that (1) “robbery under that statute requires either the use of force, violence, a threat of imminent force or violence coupled with apparent ability, or some act that puts the victim in fear of death or great bodily harm,” (2) “[a]ll but the latter option specifically require the use or threatened use of physical force against the person of another,” (3) ”we find it inconceivable that any act which causes the victim to fear death or great bodily harm would not involve the use or threatened use of physical force,” and (4) “[s]ection
As Judge Baldock‘s concurrence notes, even without Dowd, Seabrooks‘s armed robbery convictions qualify as ACCA-violent felonies under Lockley.
E. Binding Prior Precedent
Given Judge Martin‘s concurrence would discard Dowd, I also explain why our prior panel precedent rule requires that both Dowd and Lockley be followed. Under our well-established prior panel precedent rule, the holding of Dowd, as the first panel to address the ACCA-Florida armed robbery issue, “is the law of this Circuit, thereby binding all subsequent panels unless and until the first panel‘s holding is overruled by the Court sitting en banc or by the Supreme Court.” Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001). Under the prior panel precedent rule, our subsequent panel in Seabrooks cannot overrule a prior one‘s holding in Dowd even if convinced it is wrong. See United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc).
It is also irrelevant whether the panel in Dowd (or Lockley for that matter) considered all possible issues or arguments. See Tippitt v. Reliance Standard Life Ins. Co., 457 F.3d 1227, 1234 (11th Cir. 2006) (explaining that “a prior panel precedent cannot be circumvented or ignored on the basis of arguments not made to or considered by the prior panel“); Cohen v. Office Depot, Inc., 204 F.3d 1069, 1076 (11th Cir. 2000) (noting that the prior panel precedent rule does not depend on “a subsequent panel‘s appraisal of the initial decision‘s correctness“).
Accordingly, Dowd and Lockley control the outcome of this case in favor of the government unless their holdings have been overruled by this Court sitting en banc or by the U.S. Supreme Court. Smith, 236 F.3d at 1300 n.8. Seabrooks does not contend that any en banc decision of this Court overrules Dowd or Lockley. Rather, in an effort to overcome the prior precedent rule, Seabrooks argues that Dowd and Lockley are undermined by the Supreme Court‘s decision in Curtis Johnson v. United States, 559 U.S. 133, 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010). As explained below, Seabrooks‘s argument fails.
F. Curtis Johnson v. United States (2010)
First, Seabrooks ignores that Lockley was decided after, and even cited, Curtis Johnson. This is yet an additional reason that Lockley binds us here. See Smith, 236 F.3d at 1303 (“[W]e categorically reject
Second, and in any event, nothing in Curtis Johnson, a simple battery case, undermines our binding precedent in Dowd or Lockley about robbery and armed robbery crimes. In Curtis Johnson, the Supreme Court considered whether the Florida offense of simple battery by “touching” another person had as an element the use of physical force. 559 U.S. at 135, 130 S. Ct. at 1268. The Supreme Court noted that a conviction for simple battery “ordinarily is a first-degree misdemeanor . . . but is a third-degree felony for a defendant who (like Johnson) has been convicted of battery (even simple battery) before.” Id. at 136, 130 S. Ct. at 1269. Thus, Curtis Johnson‘s simple battery conviction was for only touching, conduct that was a misdemeanor but for his prior conviction.
Furthermore, Curtis Johnson did not involve (1) an act that put the victim “in fear of death or great bodily harm,” which Lockley held that “putting in fear” under Florida robbery law requires, or (2) the “attempted” or “threatened use of physical force,” which is also included in the elements clause. See Lockley, 632 F.3d at 1244; see also Leocal v. Ashcroft, 543 U.S. 1, 8-9, 125 S. Ct. 377, 382, 160 L. Ed. 2d 271 (2004) (discussing negligence and cautioning that “[w]e do not deal here with an attempted or threatened use of force.“). Seabrooks cannot use Curtis Johnson to circumvent Dowd or Lockley.
G. Mathis and Descamps
Seabrooks also argues that Dowd and Lockley are undermined by Mathis v. United States, 579 U.S. 500, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016) (Iowa burglary and the enumerated crimes clause) and Descamps, 570 U.S. at 254, 133 S. Ct. at 2282 (California burglary and the enumerated crimes clause). Of course, Mathis and Descamps involved neither Florida robbery nor the elements clause.
More importantly, these Supreme Court decisions actually underscore why both Lockley and Dowd were correctly decided. In both Mathis and Descamps, the Supreme Court instructed that in determining whether a state conviction qualifies as a predicate under the ACCA, courts first examine the elements of the statute of conviction and not the particular underlying facts of the defendant‘s crime. Mathis, 579 U.S. at 510-11, 136 S. Ct. at 2251-52; Descamps, 570 U.S. at 263, 133 S. Ct. at 2283. This is known as the categorical approach.8 Mathis also tells us to look to state court decisions interpreting state criminal statutes. Mathis, 579 U.S. at 517-18, 136 S. Ct. at 2256-57.
As explained above, Lockley applied that pure categorical approach, examined the statutory elements, and reviewed the relevant Florida court decisions. Dowd too was not based on the particular underlying facts of the defendant‘s crime, but was
H. Sudden Snatching Statute Enacted in 1999
In another effort to avoid our binding Lockley precedent, Seabrooks stresses that he was arrested in 1995 and convicted in 1997. Seabrooks contends that because defendant Lockley was convicted in 2001, the Lockley decision should be narrowly limited to only robbery convictions that occurred after 1999, when Florida enacted a sudden snatching criminal statute.10 Seabrooks argues that, before the enactment of that 1999 statute, the least culpable means of committing a robbery under
One problem for Seabrooks is that Lockley‘s holding was not based on an artificial time divide between before and after Florida‘s enactment of the 1999 sudden snatching statute. Rather and importantly, Lockley‘s holding was based on the actual requirements of the robbery crime in Florida‘s robbery statute,
Lockley alone is enough. But there is more. The Florida Supreme Court itself has concluded that a Florida robbery conviction has never included mere snatching because snatching is theft only and does not involve the degree of physical force needed to sustain a robbery conviction under
In accord with our decision in McCloud, we find that in order for the snatching of property from another to amount to robbery, the perpetrator must employ more than the force necessary to remove the property from the person. Rather, there must be resistance by the victim that is overcome by the physical force of the offender.
When the Florida Supreme Court in Robinson interprets the robbery statute, it tells us what that statute always meant. Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13, 114 S. Ct. 1510, 1519, 128 L. Ed. 2d 274 (1994) (“A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision giving rise to that construction.“); id. at 313 n.12, 114 S. Ct. 1510 (“[W]hen this Court construes a statute, it is explaining its understanding of what the statute has meant continuously since the date when it became law.“). This is patently true here because Robinson said its holding was “[i]n accord with [its] decision in McCloud” in 1976.11
Indeed, since 1922, the Florida Supreme Court has held that “[t]he force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victim‘s resistance.” Montsdoca, 93 So. at 159 (Fla. 1922). Notably, the Florida Supreme Court instructed: “There can be no robbery without violence, and there can be no larceny with it. It is violence that makes robbery an offense of greater atrocity than larceny.” Id.
I. Welch‘s Holding Is Based on Only the Residual Clause
Because Judge Martin‘s concurrence relies heavily on dicta in United States v. Welch, 683 F.3d 1304 (11th Cir. 2012), that case is discussed. To place that dicta in context, it must be noted that this Court in Welch held only that a 1996 Florida robbery conviction was a violent felony under the ACCA‘s residual clause. The Welch Court did not decide any elements clause issue because it concluded that a snatching “suffices under the [ACCA‘s] residual clause.” Id. at 1313. Simply put, Welch contains no ruling, much less a holding, about Florida‘s robbery statute under the elements clause.12 In any event, we are
I do recognize that the defendant in Welch made the same argument Seabrooks does—that Lockley is distinguishable “because Lockley was convicted [in 2001] after Florida promulgated the ‘sudden snatching’ statute [in 1999], so snatching from the person might furnish the basis for a robbery conviction here but not in Lockley.” Id. at 1310, 1312. But, as demonstrated above, Lockley focused on the elements in the robbery statute and made no temporal distinction between before and after the enactment of the sudden snatching statute. Welch‘s dicta about sudden snatching is not just dicta, but wrong dicta.13
J. In re Jackson‘s Discussion of Lockley
To be complete, In re Jackson, 826 F.3d 1343 (11th Cir. 2016), cited Lockley and suggested in dicta that Lockley might be distinguished by a possible temporal dividing line between “pre-2000” Florida robberies and post-2000 robberies. In making this suggestion, the In re Jackson Court said that (1) Lockley “construed a very different statutory scheme“; (2) that “[i]n 2000, the Florida legislature separated robbery by sudden snatching into its own statute” in
Because the requirement of “force, violence, assault, or putting in fear” in the
For all of these reasons, we affirm Seabrooks‘s convictions and 188 months’ sentence.
AFFIRMED.
BALDOCK, Circuit Judge, concurring as to Parts I, II, and III.D, and in the judgment:
I concur in Parts I, II, and III.D of the Court‘s opinion. But the remainder of Part III of the opinion gives me pause. All members of the panel agree that United States v. Lockley, 632 F.3d 1238 (11th Cir. 2011), answers in the affirmative the question of whether Defendant qualifies as an armed career criminal for federal sentencing purposes. That prior precedent is controlling on this panel with or without United States v. Dowd, 451 F.3d 1244 (11th Cir. 2006). Accordingly, unlike my Eleventh Circuit colleagues, I would resolve the sentencing issue in this case on the basis of Lockley alone and leave for another day the question of the continuing viability of Dowd.
MARTIN, Circuit Judge, concurring in the judgment:
I agree with the result that Mr. Seabrooks‘s conviction and sentence are due to be affirmed. I therefore join Parts I and II of the Court‘s opinion. However, I decline to join Part III of Judge Hull‘s opinion. I believe it reaches legal issues beyond those necessary to decide this case. Yet because Judge Hull has written broadly about Mr. Seabrooks‘s sentencing claims, I will set out my contrary view. No two judges on this panel have joined together in Judge Hull‘s alternative ruling on Mr. Seabrooks‘s sentencing claims. That means that this panel opinion stands only for the rule that our Circuit precedent in United States v. Lockley, 632 F.3d 1238 (11th Cir. 2011) requires Mr. Seabrooks‘s 1997 Florida convictions for armed robbery to be counted in support of his 2015 Armed Career Criminal Act (“ACCA“) sentence. Neither my views nor those of Judge Hull create Circuit precedent beyond that.
I.
The ACCA caps a federal prison sentence at ten years, except when the person being sentenced has been convicted of three or more violent felonies or other serious crimes in the past.
We know we cannot look at the actual facts that led to Mr. Seabrooks‘s armed robbery convictions when we conduct this evaluation. Descamps v. United States, 570 U.S. 254, 133 S. Ct. 2276, 2283, 186 L. Ed. 2d 438 (2013). Instead, Supreme Court precedent requires us to look at the elements of the statute of conviction to see whether, in the abstract, someone could have been convicted under that statute based on conduct that does not require the use, attempted use, or threatened use of physical force against the person of another. See Mathis v. United States, 579 U.S. 500, 136 S. Ct. 2243, 2251, 195 L. Ed. 2d 604 (2016). This is known as the categorical approach.
In applying the categorical approach here, we must examine whether
In recent years, the Supreme Court has clarified the analytical steps that make up the categorical approach. First, we must “presume that the conviction rested upon nothing more than the least of the acts criminalized” by the state statute. Moncrieffe v. Holder, 569 U.S. 184, 133 S. Ct. 1678, 1684, 185 L. Ed. 2d 727 (2013) (alterations adopted and quotation omitted). This is often referred to as the “least culpable conduct.” See Donawa v. U.S. Att‘y Gen., 735 F.3d 1275, 1283 (11th Cir. 2013) (citing Moncrieffe, 133 S. Ct. at 1685). To identify the least culpable conduct criminalized by the statute, we look to how state courts interpret the statute. See Curtis Johnson, 559 U.S. at 138, 130 S. Ct. at 1269-70 (“We are [] bound by the Florida Supreme Court‘s interpretation of state law . . . in determining whether a felony conviction for battery under
Second, after identifying the “least of the acts criminalized” by the state statute, we must then figure out whether the least of “those acts are encompassed by the generic federal offense.” Moncrieffe, 133 S. Ct. at 1684 (alteration adopted and quotation omitted). That means here we examine whether those acts involve the use, attempted use, or threatened use of violent force or a substantial degree of force. If they do, then the defendant‘s earlier conviction under the state statute is categorically a violent felony under the ACCA‘s elements clause, and it can be counted to support an enhanced ACCA sentence of at least fifteen years.
But if the “least of the acts criminalized” by the state statute do not involve the use, attempted use, or threatened use of violent
II.
Judge Hull concludes that under United States v. Dowd, 451 F.3d 1244 (11th Cir. 2006), Mr. Seabrooks‘s armed robbery convictions qualify as violent felonies under the ACCA‘s elements clause.1 But in light of the clarifications given to us by the Supreme Court about what steps we must take when applying the categorical approach, Dowd is no longer good law.
The Dowd opinion concluded “without difficulty” that Mr. Dowd‘s 1974 Florida armed robbery conviction counted as a violent felony under the elements clause. Id. at 1255. But Dowd did not conduct the required categorical analysis. The entirety of Dowd‘s reasoning occupies one sentence: ”Dowd‘s January 17, 1974, armed robbery conviction is undeniably a conviction for a violent felony [under the ACCA‘s elements clause].” Id. Dowd‘s reasoning was not sufficient to support its holding, much less this one too.
But even if Dowd‘s reasoning was adequate under the categorical approach at the time it was published in 2006, the Supreme Court has since made it clear that we must do more. Judge Hull says that because Dowd did not look to the underlying facts of Mr. Dowd‘s prior conviction, Dowd correctly applied the categorical approach. But the Supreme Court has since emphasized in Curtis Johnson, Moncrieffe, and Mathis that when applying the categorical approach, we must undertake the rigorous step-by-step analysis I‘ve described here. Nowhere did the Dowd opinion: (1) consult state law to identify the least culpable conduct for which an armed robbery conviction could be sustained; (2) analyze whether that least culpable conduct was encompassed by the generic federal offense; or (3) discuss whether the Florida armed robbery statute was divisible. It only stated the conclusion (again, in one sentence) that a 1974 Florida armed robbery conviction counts as a violent felony.
Judge Hull says that several of our recent “cases” have also followed Dowd. I do not see this as an accurate report on the status of Dowd. She does not mention that these “cases” were orders issued on applications to file second or successive
When Courts of Appeals rule on applications from prisoners who want to file a second or successive habeas petition, the governing statute limits our role to merely deciding whether a prisoner has made a prima facie showing that his claim involves “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”
It is neither wise nor just for this type of limited ruling, resulting from such a confined process, to bind every judge on this court as we consider fully counseled and briefed issues in making merits decisions that may result in people serving decades or lives in prison. The fact that some of this court‘s limited rulings on these applications referenced Dowd should have no bearing on our merits decision here. Dowd has been abrogated and no longer binds us on the merits.
III.
While I reject Judge Hull‘s reliance on Dowd, I agree that the outcome of this case is controlled by United States v. Lockley, 632 F.3d 1238 (11th Cir. 2011).4 Lockley considered whether a 2001 Florida attempted robbery conviction under
Mr. Seabrooks argues that Lockley does not govern his case because the robbery statute encompassed “sudden snatching” when he was convicted in 1997, in contrast to when Mr. Lockley was convicted in 2001. Mr. Seabrooks points to the enactment of
Mr. Seabrooks‘s argument fails because at the time he was convicted in August of 1997, the controlling Florida Supreme Court decision interpreting
However, I do not agree with Judge Hull‘s statement that the “force, violence, assault, or putting in fear” requirement in
Judge Hull says that I have applied McCloud out of context, but if I‘ve done so, I‘m in good company. The Florida Court of Appeals for the Fourth District—the district where Mr. Seabrooks was convicted—applied McCloud to hold that tearing a necklace from a victim‘s neck involved “sufficient force, be it ever so little, to support robbery.” Santiago v. State, 497 So. 2d 975, 976 (Fla. 4th Dist. Ct. App. 1986) (emphasis added). So in the real world, people were being prosecuted and convicted under Florida‘s robbery statute for using minimal force during the time that McCloud was the controlling precedent. The particular facts underlying McCloud can‘t erase that reality.
Judge Hull correctly observes that Welch analyzed
In any case, Judge Hull‘s remark that the elements of
I analyze Mr. Seabrooks‘s case in a different way than does Judge Hull, but I agree that his conviction and sentence must be affirmed.
Winsome Elaine VASSELL, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
No. 15-11156
United States Court of Appeals, Eleventh Circuit.
Date Filed: 10/21/2016